The Pacific commercial advertiser. [volume], June 17, 1898, Page 9, Image 9

About The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921

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THE PACIFIC COMMERCIAL ADVERTISER: HONOLULU, JUNE 17, 189S.
IN THE SUPREME COURT OF THE HAWAIIAN
ISLANDS.
M.uan Ti-:i:m, 1
REIM'IiLIC OF II AWAIT . KAXALO.
Appeal n:o.M Djstjmct Cornr or I(t.fi.n.i'
Submitted Maticii 2 . 1S0S.
D i de d J r x i: 0 . 1 S 0 S .
Jldd, C.J., E::kai: axo AVurrixo, .T.I.
Defr-ndant pleaded guilty in the District Court to the following charge:
"District Court of Honolulu, Island of Oahu. Saturday, January
22, 1808. The Republic of Hawaii vs. Kanalo. Charged with violat
ing Section 5, Act 21, Laws Provisional Government during one
week prior to January 22, 1898, by conducting and maintaining a
certain banking game, to wit, 'Russian War,' at which money or
something of value is lost or won."
(1) Held, on appeal, that the statement of the venue in the margin cf
the charge wa3 sufficient.
(2) Objections to the sufficiency of the charge should have been rade
before pleading.
OPINION OF THE COURT BY JUDD, C.J.
The defendant was charged in the District Court of Honolulu
;s taken down hy the clerk of said court, as follows:
The llopublic of Hawaii v. Kanalo. District Court of Hono
lulu, Island of Oahu, Saturday January 22, 1893.
Charged with violating Section 15, Act 21, Laws Provisional
Oovernment during one week prior to January 22, 1S9S, by
conducting and maintaining a. certain hanking game, to wit,
Russian "War," at which money or something of value is lost
or won.
He pi cail guilty and was duly sentenced. Thereafter he
appealed to this Court on points of law as follows:
'The defendant in this case apjeals from the judgment herein
to the Supreme Court of the Hopublic of Hawaii, upon the
following points of law, to wit:
''That the charge made and entered, herein against defendant
does not state facts sufficient to constitute a crime or any offense,
or anv violation of anv statute or law of the Republic of Hawaii.
That said charge does not definitely state the time when the
nlleccd violation of the statute mentioned in said charge occurr
ed, as is required hy law; no certain date or time heing given.
That said charge does not state the place where the alleged
violation of said statute occurred, or any place, or that it occurred
within the District of Honolulu or within the jurisdiction of the
District Court of Honolulu. That said charge does not state
facts sufficient to show that said Magistrate or said District Court
had jurisdiction to render said judgment or any judgment what
ever herein. That defendant's alleged idea of guilty herein was
and is void and of no legal force or effect whatever. That said
judement was and is ahsolutely null and void. That defendant
appeared herein hefore said Magistrate in said District Court
upon said charge alone and without counsel or attorney'
Defendant's counsel relies upon the failure to state the venue,
-and contends that the pica of guilty only confesses such juris
dictional facts as are well pleaded.
The Deputy Attorney-General (K. P. Dole) referred us to
Section 12 of the Act to Regulate Criminal Procedure, Comp.
Laws, p. Hll, which reads: "It shall not he necessary to state
anv venue in the hody of any indictment, .hut the jurisdiction
named in the margin thereof shall he taken to he the venue for
all the facts stated in the hody of such indictment; provided that
in cases where local description is or hereafter shall he required,
such local description shall he given in the hody of such indict
ment." The charge as sent up has the caption, "District Court of
Honolulu, Island of Oahu," and this is in the upper "margin."
Moreover, defendant should have objected to the omission
to state the venue hy motion to quash or hy asking for a more
specific charge hefore pleading guilty. It could then have been
amended or amplified. The Act. of Criminal Procedure pro
vides in Sec. HO (Com. L., p. 01-7) that every objection to any
indictment for any defect apparent on the face thereof shall
le taken by demurrer or motion to quash such indictment before
the accused has pleaded and not afterwards," and the court may
order an amendment. By analogy, this rule should be applied
to criminal charges made in the district courts.
After the argument of this case, we requested counsel to
present their views iqxm the question whether this case was one
which could properly be raised upon an "'appeal on points of
law," and this we now consider.
"Words stating the place where the offense was committed
were left, out of the charge as written in the minutes, but the
defendant pleaded guilty and was duly sentenced. "Within ten
days thereafter counsel took an appeal from the judgment to the
Supreme Court on points of law, the point relied upon being
that there was no venue laid. Xow what was appealed from?
It was not the action of the court finding him guilty upon his
confession, nor was it the imposition of the punishment as being
erroneous or excessive. The statute allows appeals from the
District Court to the Circuit Court where a trial He novo may be
had. It also allows appeals solely on points- of hue to the
Supreme Court. Dut these appeals are from the Hrcisinn.? of
the District Court. The law as it now stands is in Act 5 1 of Laws
of 1S00, as follows: "'And further provided, that any appeal sole
r upon points of law from a decision of a District Magistrate
shall be -tat-d in. the notice of appeal, and such appeals upon
points of law may be made either to the Circuit Court of the
same Circuit, or to the Supreme Court," Are. The p.int of
law that the charge did not state the venue was not passed upon
by the Magistrate. He made no "decision" upon it. How tle n
can. there be an appeal taken upon the point f
The subiect of this method of eonv"-tinir errors of law made
in the Di-trict Court, bv an apnclhite court, novel in this conn-
tlx
trv, has been the subiect of considerable dbcu-sion in this Court.
In A font r. Kanle, 7 Haw. 521, we raid that the correct prac
tice in taking such apjeals was a- follows: "The points of law.
if thev have been made bv the partv durinir the trial and arc
stated bv the Police Justice in his minutes, need not be restated
by the Justice on a separate pap r. If they appear on the
minutes, that is sufficient."
"Tf the Mints on which the appeal is based were not made
during the trial and (or) were not noted on the minutes, they
must be reduced to writing and be presented to the Police Jus
tice within the ten days allowed for perfecting the appeal." In
this way alleged errors of law made (1) during the trial as well
as those made in the (2) decision, can be taken to the appellate
court. Put from nothing in this decision can it be inferred that
a pmnt of law not passed upon by the Magistrate can be taken
to an appellate court by appeal. If any error, defect or omission
in the so-called "record" of the District Court can be thus taken
up why is it required by Pule S that the point be presented to
the Magistrate for his certification? He says by the certificate
that such and such a point was decided in his court. In the
case before us we have no such certificate and none could be
obtained, for this point was not passed upon in the lower court.
There may bo other methods by which errors of the character
complained of in this case can be taken up, but they cannot be
by an appeal upon points of law. AVI i ere the appeal is not
general but is restricted to points of law there must be some
judicial action by the court from which to appeal. Inquiry into
the practice in the District Courts will accentuate the justness
of the conclusion we have arrived at. A person is brought before
the court and charged orally with an offense. Xo statute re
quires the charge to be in writing. The Magistrate takes down
as much of the particulars of the charge as he deems sufficient.
The charge thus written is not an indictment. The defendant
is at libertv to ask that the charge be made more specific. AVhen
the Magistrate is satisfied that the defendant understands the
charge he asks him to plead. The presumption is that the
defendant understands the charge before pleading.
If the Magistrate was of opinion that the defendant under
stood the charge and took his plea of guilty thereon what sense
is there in charging error existing on the so-called "'record" of
the ease, when neither the defendant nor the prosecutor nor the
court had any such omission in mind? This would dignify the
"'charge" in the District Court and clothe it with the formalities
of an indictment in a court of record. If it was an indictment
such a defect, as in this case, being apparent on its face, would
have to be taken advantage of by demurrer or motion to quash
before pleading and not after. Sec. 03, Crim. Procedure Act,
Comp. Laws, p. 017. To hold that an appeal lies on a "point of
law," where defendant did not make an objection to the charge
before pleading, raising this point would not only require the
charge to be as particular as an indictment, but a charge would
be deprived of the advantage of the requirement (the statute
not providing for it) that objection be made before pleading,
so as to allow of amendment. It has been uniformly held, fol
lowing Jxc.r v. (lill infill am, 2 Haw. 750, that proceedings in a
Magistrate's court on appeal are to be regarded with less techni
cal precision than an indictment. The present, statute only
requires that the Magistrate '''preserved in written detail the
minutes and proceedings of their trials, transactions and judg
ments with the substance of the testimony and the facts upon
which their decisions rest." Sec. 10, Act 57, Laws of 1892.
The appeal is dismissed.
E. P. Dole, Deputy Attorney-General, for the prosecution.
J. T. Dc Bolt for defendant.
BY JUSTICES FREAR AND WHITING.
AVe concur in the foregoing conclusion upon the first two
grounds stated, but express no opinion as to the third ground,
relating to the right of appeal.
IN THE SUPREME COURT OF THE HAWAIIAN
ISLANDS.
Makcii Tkii.m, 189$.
JOHX KALAUKOA r. AVILLIAM IIEXRY
Exceptions feom Cn:criT Court, First Circuit.
Srr.MiTTED April 4. 1898.
Dixjded Juxi: 1. 1898.
JUDD, C.J.. FREAR AM) AVlIITIXG, J J.
It is not proper cross-examination to ask questions of a witness not
relating to anything testified to by him on the direct.
Facts testified to tending to show a want of probable cause for the ar
rest complained of, reviewed.
Tax Collectors are not protected from suits if they issue warrants of
arrest of delinquent taxpayers without probable cause and with
malice.
OFINION OF THE COURT BY JUDD, C. J.
This b an action of damage for malicious prosecution tried
in the Circuit Court, First Circuit, with a mixed jury, who
found a verdict for the plaintiff in the sum of one hundred and
fifty dollars. The defendant brought a hill of exceptions to
this Court. Defendant, is tax a-sesor and collector for the
District of Koolauho. Oahu, Xo. 1. and the plaintiff having
been assessed for personal taxes for the year 1807 in that district
had not paid them there. On the 00th of June, defendant
issued his warrant of arrest for defendant. The warrant alleges
that "whereas John Kalaukoa of Kailua, Oahu, has reflected
and failed to pay the sum of five 50-100 dollars as-essed upon
him for personal taxes for the year 1807, now due and unpaid
and no property being found belonging t the said John Kalau
koa whereon to lew bv distress," the officer is directed to forth
with arrest the said John Kalaukoa and take him before the
District. Magistrate of the District to show whv he should not
be sentenced to imprisonment at hard labor until he discharge
the amount of the tax and costs.
The first two exceptions are to the refusal of the court to
allow defendant's counsel in cross-examination to ask the deputy
sheriff and the District Magistrate respectively, if they knew
whether the defendant (AV. Henry) "had any ill will or malice
or anything of the kind to the plaintiff Kalaukoa." It was not
proper cross-examination, plaintiff not having introduced from
these witnesses any evidence of actual malice or ill will against
plaintiff on the part of the defendant.
Exception three is to the court's refusal to allow a witness
to be asked on cross-examination if he knew whether Kalaukoa
customarily resided in the District of Kaneohe, Koolaupoko.
The question was disallowed because not proper ero-s-oxamina-tion.
The court was right; the question was not responsive to
nnvthing brought out on the direct examination.
Exception four. The court refused to allow defendant's coun
sel on cross-examination of the plaintiff to ask him the question,
"AVithin the last five vears, outside of the time vou were arrested
and compelled by process of law to pay your taxes, have you
ever gone and paid your taxes voluntarily?" This question was
properly rejected, for it was not material, and to show what his
habit in respect to paying taxes were could not affect the issue
before the court and jury.
Exception five. AVhen the plaintiff had closed, the defendant
asked for a non-suit on three grounds, (a) "Xo evidence of malice
to go to the jury, nor any facts proven from which a jury could
infer malice, (b) Xo evidence of the want of reasonable and
probable cause. The burden is upon the plaintiff to show
want of reasonable and probable cause and malice." These
two points we will consider later. The third ground of non
suit is (c) "That Henry's acts in assessing the defendant and col
lecting the tax Avere of a judicial character. He was acting under
a statute and he is protected by that statute. Unless upon the
face of the Avarrant the process is void and therefore there was
absolutely no jurisdiction to issue the Avarrant. If he had any
authoritv to issue the Avarrant the Act protects him."
It does not seem to us that the statutory authority granted
tax collectors to issue tax warrants makes them judicial officers.
But whether they are judicial officers or not, they are amenable
to suits if they issue process of arrest without probable cause
and with malice.
Exception six. Counsel for defendant oxeoplcd to the verdict
as being contrary to hrw and the evidence and the weight of
evidence. This necessitates consideration of the evidence as
bearing upon this question as well as upon the first two points
upon which the motion for a non-suit was grounded.
The plaintiff was delinquent for his personal taxes. The
tax assessor had in January, 1S07, visited plaintiff at Kailua and
assessed him for personal taxes, and (after inquiries) did not
enroll his property as subject to taxation because it was- not
Avorth OAer $000, the amount exempted by law. It does not
appear that plaintiff's personal taxes were; then demanded, though
bv law they were then due. In June the taxes were demanded.
The defendant says that plaintiff said he had "paid his taxes in
Honolulu," which upon investigation by defendant proved to be
untrue. Defendant again asked about the 25th June for tho
taxes and the same reply was again made by plaintiff. Defend
ant asked him to produce his receipt and on plaintiff's A'iving
an evasive answer, saying, "I've got my receipt; I have paid
mv taxes," on the 30th of June defendant issued a Avarrant for
his arrest, gave it to an officer and told him to serve it. He did
not believe plaintiff when he said he had paid his taxes.
The deputy sheriff, Pahia, says that about a month before
the arrest plaintiff said to defendant when asked for his taxes,
that "he had paid them in Honolulu." On the other hand
plaintiff testified that the answer he returned to defendant was.
that he paid his taxes either in Honolulu or Kohala, and that
he was not asked by defendant before the 30th of June to pro
duce his tax receipt, but his dog tax receipt and that he, on the
dav of arrest, was asked for the first time to produce his receipt
for his personal taxes. He testified that he replied that the
receipt was in Honolulu and if he was allowed a reasonable time
he would produce it, but no time was given him and defendant
immediately made out a Avarrant upon which he was arrested.
The officer to whom the warrant wa passed for execution says
that plaintiff had come on horseback to the court-house and jail
vard that moraine:: he dismounted, hitched his horse to the fence
and came within the enclosure; defendant seeing him Avent to
his own house and came back and gave a Avarrant to witness who
read the same to plaintiff who said he "had paid his taxes and that
his receipt Avas in Honolulu." That they rang up by telephone
some one in Honolulu and the reply received was that the re
ceipt would be brought over. The officer then locked plaintiff
up in a olo--e cell and in an hour's time the Attorney-General